Salvation by the Electoral College

Since the election, many people have talked up the idea that the EC electors can and should save us from a Trump presidency when they meet to vote on December 19.  Electors can and should, according to the EC salvation enthusiasts, ignore whatever oaths or pledges or whatever else binds them to vote for Trump, and vote instead for Clinton.  They should do this in order to save us from the disaster of Trump in the White House.

This idea is simply wrong.  The 51 state and District ECs cannot, under current law, save us.  And they shouldn’t save us, in the sense that a system in which electors were free to exercise their discretion would be much worse than what we have now    

When was the last year that any state's election law allowed for unbound electors? For over a century, they have all only allowed on the ballot electors bound to vote for a presidential candidate. They have not allowed people to run for the office of elector in order to deliberate on the appointed day and then vote for whoever they want, as the EC salvation enthusiasts seem to imagine the Constitution requires.

States are clearly allowed to decide how their allotment of electors is chosen. Whether a federal statute could forbid one way or another of elector selection, or it would take an amendment for that, is not so clear. But the states have all decided to have bound electors. They have all done so for close to two centuries. It seems a bit of a stretch to argue that they have all been wrong for all that time, and no one has noticed, or done anything about it.

And no, the history of faithless electors does not prove the unconstitutionality of binding electors, simply because they have been allowed to cast faithless votes. The courts generally will not order any remedy -- and therefore won't take a case that seeks a remedy -- that is pointless, that does nothing, that has no practical effect. The one or two faithless electors in a cycle that we have seen in the past, has never gotten close to changing the outcome. We wouldn't expect to see the courts take action to uphold state election law requiring bound electors to have their votes counted as bound, until and unless we face a situation in which so many claim to have voted contrary to how they agreed to vote when they accepted the nomination to be electors, that it would change the outcome.  If it does come to that, I can't see the courts failing to order that the EC votes be tallied and submitted to Congress exactly as state election law requires, rather than according to the will of electors claiming a discretion they were not selected to exercise.

We don't actually live in a universe in which any of the 50 states (or the District) have election law that allows unbound electors, electors who run on Election Day for an office that lets them decide 5 weeks later who they will vote for as president. Instead, all 51 jurisdictions only allow people to present themselves to the general electorate as bound to vote for the candidate of one party or another.

But let's set aside for a moment the unlikelihood of the courts overturning the present system of bound electors, and imagine that enough electors vote for Clinton instead of Trump (though bound to vote for him) that it would change the outcome.  Trump then sues to get their votes counted as bound, and the courts then use this case (or cases) to declare that no, the whole system of bound electors we've been using for almost two centuries is unconstitutional. Instead, the courts tell us, Art II, sec 1, para 3 means that the electors must meet and conduct an actual vote in which they are free from any prior commitments or oaths or pledges, or any other binding, as to how they vote.

One set of problems that would arise would apply just to this cycle. When it strikes down bound electors in the case of the specific elector(s) the case(s) before it are about, does the court also order all the electors to reconsider their votes? The electors incorrectly imagined that they were required to vote as state law specifies. Do they get a redo, a chance to vote in light of what the law actually is? Do any of them have to vote for Trump or Clinton, or can they choose, I don't know, one of the Koch brothers?

Do the voters get a redo? We all voted under the assumption that the electors we were voting for would be required to vote for a given candidate. In my state, the electors' names aren't even on the ballot, and instead I voted for "electors for Hillary Clinton". If I had known I was choosing people who would exercise discretion on December 19, you can bet I wouldn't have voted for some anonymous person I knew nothing about.

But I'll let EC salvation enthusiasts run the table on their dream scenario, so let's imagine that the courts only allow EC votes as cast on our imagined December 19, the vote that went for Clinton. It's great that this cycle we're spared the criminal buffoon, but what happens in future cycles, in our brave new world of unbound electors only?

A system of bound electors is the implementation of the Constitution that gives us, back-door, popular election of the president. It's clunky popular election; it gives small states undue weight, and otherwise sometimes, as is the case this year, frustrates the actual popular choice. But, compared to voting for the members of 51 ECs who would then be free to decide on the presidency, it is popular election of the president. In the EC salvation dream scenario, every four years 51 fly-by-night state committees get to choose the president. State legislatures are bad enough.  These will be worse, because less accountable, because the short duration of their immense power will render them unusually free of the ties that bind our other office-holders.

We no longer live in Hamilton's world of an enlightened aristocracy guiding the ship of state so that the vulgar masses can't run it onto the reefs. There is no natural aristocracy in 2016 that will be selected to be electors. There never was, even in 1789, which is why we abandoned unbound electors and went almost immediately to our current clunky, indirect, popular election of the president.

I’ll give the last word to my dream scenario. We pass an amendment to get rid of the EC and go to a straight popular election of the president. But even the current system is better than the EC Salvation nightmare, in which we let the presidency go to whoever can sway the members of 51 ECs.

No doubt we do face a dangerous situation with Trump’s impending inauguration.  No one should doubt the sincerity and wisdom of EC salvation enthusiasts in seeking a means, any means that at least seems lawful and non-violent, to prevent that disaster.  But any situation, however bad, can be made worse.  The people pushing this idea simply haven’t thought it through. 

The usual argument against the EC Salvation idea is that it’s impractical, that it won’t work.  That’s true enough, but I believe the people pushing this idea deserve something better than a horse race answer, that they should give up because the odds are against their success.  That’s always inadequate advice.  They should give up because unbound electors is a terrible idea.  It wouldn’t be used solely to get us out of this year’s disaster, probably wouldn’t be used that way even this year (The electors freed of their bonds this year would be mostly Republican tools.  They could easily do us worse than Trump if set free to work their predictably stupid and vicious little wills.  How do you think you get to be a Republican tool?), but would definitely be used into the indefinite future to give us worse than Trump.

Think this idea through, past the horse race objections that it won’t succeed, and all the way to a future in which it has succeeded.  Because, win lose or draw, the rules you propose will not be used only this once, for good, but will instead become the new way a president is selected every cycle until the likely collapse adopting this system would bring about.